Seeba v. Dep't of Justice
| Decision Date | 21 February 2023 |
| Docket Number | PH-0752-17-0162-I-1 |
| Parties | JASON M. SEEBA, Appellant, v. DEPARTMENT OF JUSTICE, Agency. |
| Court | Merit Systems Protection Board |
THIS FINAL ORDER IS NONPRECEDENTIAL [1]
Raymond C. Fay, Esquire, Washington, D.C., for the appellant.
Jenifer Grundy Hollett, Esquire, Washington, D.C., for the agency.
BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member Member Leavitt issues a separate dissenting opinion.
¶1 The appellant has filed a petition for review of the initial decision, which affirmed his removal from the Federal service. For the reasons discussed below, we GRANT the appellant's petition for review and REVERSE the initial decision.
¶2 The appellant was employed as a GS-11 Supervisory Correctional Officer (Lieutenant) with the agency's Bureau of Prisons. Initial Appeal File (IAF), Tab 4 at 18 122. On May 27, 2015, there was an incident during which the appellant purportedly used excessive force to subdue a noncompliant inmate and thereafter provided inaccurate information in reporting the incident. Id. at 56-58. In late August or early September 2016, the appellant provided to the warden a lengthy memorandum outlining his career with the agency, his experiences surrounding the 2008 death of a fellow Correctional Officer, his motivations for becoming a Lieutenant, and his experience with the agency's use of force policy.[2]Id. at 45-54.
¶3 On October 18, 2016, the agency issued the appellant a proposal notice, charging him with failure to follow the agency's use of force policy and providing inaccurate information on a Government document. Id. at 56-58. The first sentence of the notice stated that, "I propose you be removed from your position of Supervisory Correctional Officer (Lieutenant), GS-007-11." Id. at 56. The proposal notice subsequently stated that "[i]f this proposal is sustained, your removal would be fully warranted and in the interest of the efficiency of the service." Id. at 59. The proposal notice also stated that the appellant could reply to the deciding official orally, in writing, or both and that any reply had to be received by the deciding official within 15 work days. Id.
¶4 The proposing official testified that an agency human resources manager wrote the notice,[3] that it was his understanding that he was proposing that the appellant be demoted to the Correctional Officer position, and that he did not realize until he talked with the deciding official that the appellant's removal from the Federal service was a possibility. Hearing Transcript (HT) at 125-28, 131-32, 141 (testimony of the proposing official). The proposing official specifically testified that, while giving the appellant the proposal notice, he told the appellant that he was proposing his removal from a supervisory position and that he would become an officer. Id. at 131-32, 141 (). The deciding official similarly testified that, from his conversations with the proposing official, it was his understanding that the proposing official "maybe just [wanted the appellant] removed from the lieutenant's job," as opposed to being removed from the Federal service. Id. at 188-89 ().
¶5 The appellant's oral reply took place on October 31, 2016. IAF, Tab 4 at 23. He was not represented. The appellant testified that, at the beginning of the oral reply meeting, he was "floored, stunned, shocked," to learn that he was facing removal from the Federal service. HT at 283 (testimony of the appellant). The deciding official also testified that the appellant "was pretty surprised" to learn, at the oral reply meeting, that his removal from the agency was a possible penalty. HT at 190 ().
¶6 After his oral reply, the appellant resubmitted a copy of the memorandum he submitted in late August or early September 2016 and included a transmittal memorandum stating that he was requesting that the memorandum be considered in determining what discipline he would receive. IAF, Tab 4 at 55. The appellant also apologized for submitting the information "at this later date," but indicated that he was initially informed that he was facing a demotion from his Lieutenant position but that he had been advised that day that he was facing removal from the agency.[4] Id. The appellant concluded that, although demotion is a serious repercussion, removal "is a very different scenario." Id.
¶7 The deciding official issued a decision removing the appellant effective January 3, 2017. Id. at 18-22. This appeal followed. IAF, Tab 1. The appellant challenged the charges on the merits, argued that the penalty was unreasonable, and asserted that he was denied due process when the proposing official informed him that he was facing a demotion and he learned for the first time at the oral reply that he was facing removal. Id. at 9-14.
¶8 After holding the appellant's requested hearing, the administrative judge sustained the charges, denied the appellant's affirmative defense, determined that the agency established nexus, and found the penalty to be reasonable. IAF, Tab 36, Initial Decision (ID). In finding that the agency afforded the appellant minimal due process before effecting his removal, the administrative judge reasoned that "[t]he appellant's oral and written responses reflect that he was aware of the nature of the charges and afforded an opportunity to substantively respond to the proposal notice." ID at 18.
¶9 On review, the appellant again challenges the charges on the merits, argues that he was denied due process, and asserts that the penalty was unreasonable. Petition for Review (PFR) File, Tab 1. The agency has filed a response opposing the petition, and the appellant has filed a reply to the agency's response. PFR File, Tabs 3-4.
¶10 When, as here, a public employee has a property interest in his continued employment, the Government cannot deprive him of that interest without due process. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538 (1985). The U.S. Supreme Court has described the requirements of due process as follows:
The essential requirements of due process . . . are notice and an opportunity to respond. The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement. The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story.
Id. at 546. As the Court explained in Loudermill, the need for a meaningful opportunity for the employee to present his side of the story is important for two reasons. First, an adverse action "will often involve factual disputes," and consideration of the employee's response is of "obvious value in reaching an accurate decision." Id. at 543. Second, "[e]ven where the facts are clear, the appropriateness or necessity of the discharge may not be; in such cases the only meaningful opportunity to invoke the discretion of the decisionmaker is likely to be before the termination takes effect." Id.
¶11 Our reviewing court, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has, as it must, followed the U.S. Supreme Court's analysis in Loudermill, stating that "the employee's response is essential not only to the issue of whether the allegations are true, but also with regard to whether the level of penalty to be imposed is appropriate." Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999). In Stone, the Federal Circuit held that in some circumstances it is a due process violation for a deciding official to consider additional material regarding the reasons for the action of which the appellant was not provided notice. Id. at 1376. The Federal Circuit specifically extended the holding in Stone to the consideration of additional information in determining the penalty. Ward v. U.S. Postal Service, 634 F.3d 1274, 1280 (Fed. Cir. 2011).
¶12 In this appeal, it is undisputed that the agency proposing official told the appellant, as he gave him the proposal notice, that he was proposing the appellant's demotion from Lieutenant to officer. HT at 131-32, 141 (). The notice itself, although perhaps clear to one versed in the intricacies of Federal employment law, was, when combined with the proposing official's statement, far from clear.[5] The administrative judge found credible the appellant's assertion that he understood the proposal notice as proposing his demotion rather than his removal from the Federal service. ID at 17. The proposing official believed he was proposing a demotion, and expressed such to the appellant, who relied upon the proposing official's representations. To be clear, this is not a case wherein the appellant unreasonably had a unilateral misunderstanding of the agency action.
¶13 Thus, when he appeared for his oral reply, the appellant was shocked and surprised. He learned for the first time that the agency's deciding official was considering a significant additional fact-that he was facing removal from the Federal service and not just a demotion. The deciding official did not stop the proceedings, clarify the appellant's misunderstanding, and afford him additional time to reply.[6] The original response period set in the proposal notice expired on November 8, 2016, eight days after the appellant learned that he was facing a removal, and the appellant hastily submitted the memorandum he previously submitted as an additional reply, but that memorandum did not address the...
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